Nassau County Gang Assault in the First Degree

N.Y. Pen. Law § 120.07

To many the term "gang assault" implies an assault committed by an organized street gang. However, gang assault does not mean that at all. Gang assault is the charge you will face if you and at least 2 other people operate in concert to assault another person. It is not necessary for the group to be part of an organized street gang. For purposes of the assault statute a "gang" is simply 3 or more people assaulting another person. There are 2 types of gang assault: gang assault in the first degree and gang assault in the second degree. While both are serious felonies gang assault in the first degree carries a punishment that is more severe, as it involves intending to cause the victim to suffer serious physical injuries. If convicted of gang assault in the first degree you could face a sentence that includes several years in prison, a fine and restitution. Therefore, if you have been charged with gang assault in the first degree it is important that you immediately contact an experienced Nassau County Gang Assault in the First Degree Lawyer who will vigorously defend you to ensure that your case is resolved in the best possible manner given the facts of your case.

There are 2 degrees of gang assault: gang assault in the second degree and gang assault in the first degree. Gang assault in the first degree is the more serious offense. You will face this charge if you assault another person and are aided in the assault by at least 2 other people. Your intent must have been to cause serious physical injury and as a result of the assault the victim must have actually suffered serious physical injury. It is a Class B felony. Physical injury is defined as one that causes an impairment of physical condition or substantial pain, while serious physical injury is one that is so serious that it creates a substantial risk of death, causes death, causes protracted disfigurement or impairment of health, or causes loss of a bodily organ. N.Y. Pen. Law § 10.00. The difference between a second degree gang assault charge and a first degree gang assault charge is the intent. For a second degree charge your intent would have been to cause physical injury while for a first degree charge you intent would have been to cause serious physical injury.

The court will determine whether or not you intended to cause the victim serious injury by looking at your actions. For example, in People v. Meachem, 922 N.Y.S.2d 721 (201) the court found that the natural and probable consequences of repeatedly striking a defenseless victim is that the victim would sustain a serious physical injury. Thus, it was reasonable to conclude that that was the defendant's intention.

In addition, to face a charge of gang assault the other 2 people must be present at the time of the assault and they must have been acting in concert with you. Acting "in concert" means that they were acting in jointly or in collaboration with you. This does not mean that you and the other 2 people had to come up with an elaborate plan prior to the assault. It simply means that the 3 of you acting together to ensure that that the assault was carried out.

Defense to a Gang Assault Charge

The lack of seriousness of the victim's injury may provide a defense to a charge of gang assault in the first degree. A gang assault in the first degree charge is based on the defendant intending to cause serious physical injury and the victim suffering serious physical injury. If either of these factors is absent, you have a valid defense against the charge. The court will look at all of the circumstances of the assault to determine your intent. If the court determines that while you intended to cause the victim to suffer a physical injury, but not a serious physical injury, then you would have a defense to a gang assault in the first degree charge.

The court will look closely at medical evidence to determine whether or not the victim suffered from a serious injury. Factors which courts may consider include:

Whether the victim lost consciousness

Whether the victim required surgery

Whether the victim suffered a permanent scar

Whether the victim experienced a great deal of pain

Whether any vital organs were damaged

Whether the victim suffered an amputation

For example, in People v. Mazariego, 986 N.Y.S.2d 235 (2014) the court declined to uphold a gang assault in the first degree charge where after being stabbed by the defendant, the victim needed no stitches, remained conscious, was able to hold a conversation, and was not disoriented. In People v. Tucker, 936 N.Y.S.2d 386 (2012), while the attending physician testified that the stab wounds that the victim received could have caused a substantial risk of death, he did not testify that they had in fact presented a substantial risk of death for the victim. Thus, the court concluded that the victim did not suffer a serious physical injury and the defendant's conviction for gang assault was overturned.

Consequences of a Gang Assault Conviction

If you are convicted of gang assault in the first degree your sentence will include prison, payment of fines and fees, and post-release supervision.

Prison

Because gang assault in the first degree is a Class B felony, the maximum possible sentence is 25 years in prison. N.Y. Pen. Law § 70.02. Because it is also classified as a violent felony, the judge is required to impose a minimum sentence of 5 years. Your sentence will be determinate, meaning that it will be a set period of years, and will not involve a range. The length of your prison sentence will depend on factors such as your prior criminal record.

Even if you have no prior convictions then the minimum sentence you will receive is 5 years in prison. The court will not have the option of sentencing you to no prison time. If your status is that of a non-violent predicate offender, meaning that you have been convicted of a non-violent felony offense within the last 10 years, then the court will sentence you to at least 8 years for an assault in the first degree conviction. If you have been convicted of a violent felony offense within the prior 10 years, you will be classifies as a violent predicate offender. The minimum prison sentence that you will receive is 10 years. If you are a persistent felony offender meaning that you have been convicted of at least 2 felonies, then the minimum sentence you will receive is 20-25 years in prison; the maximum sentence is life in prison. N.Y. Pen. Law § 70.08.

For example, in People v. Cordato, 924 N.Y.S.2d 649 (2011) defendant Kari Cordato was convicted of gang assault in the first degree. Because she had a prior non-violent felony conviction Cordato was sentenced to 15 years in prison.

Post-Release Supervision

If convicted of gang assault in the first degree part of your sentence will also include a term of post-release supervision of up to 5 years. N.Y. Pen. Law § 70.45. Post-release supervision is a community supervision sentence similar to probation or parole. Upon release from prison you will be supervised by the Division of Parole. There will be several rules that you must follow while you are on post-release supervision. The purpose of the rules are to ensure that you have a smooth transition back in to the community and to minimize the likelihood that you re-offend. Such rules will require you to not commit any more crimes, refrain from associating with others with criminal records, patronizing unlawful places, possessing controlled substances, or possessing a gun. You must agree to warrantless searches, drug testing and home visits by your Parole Officer. You also will be required to stick to a curfew and hold a job or go to school. If you violate any of the terms of your post-release supervision, your post-release supervision may be revoked resulting you having to go back to prison.

Fines, Fees and Restitution

As with being convicted of any type of violent crime being convicted of gang assault in the first degree will have significant financial consequences as you will be required to pay a fine, fees and restitution. The judge may order you to pay a fine of up to $5,000. Furthermore, you will be required to pay a "mandatory surcharge" of $300, a victim assistance fee of $25. N.Y. Pen. Law § 60.35, as well as a parole supervision fees of $30 per month.

Another financial consequence of an assault in the first degree conviction is that you will have to pay restitution to your victim. Generally, the maximum amount of restitution is $15,000, plus a 5% surcharge. However, the law gives a judge the authority to increase the amount of restitution that you must pay to more than $15,000 if it is to cover the amount of the victim's medical expenses. However, if you cannot pay the judge may adjust the payment terms, lower the amount you must pay, or revoke the part of the sentencing requiring you to pay.

Long-Term Consequences

Even after you serve your prison term, post-release supervision term and pay your fees, fines and restitution, there will be additional long-term consequences to being convicted of gang assault in the first degree.

Criminal record

Difficulty finding a job

Barred from certain careers and professional licensing such as teaching, practicing law, driving a taxi, working as a security guard and operating a child day care business

Barred from owning a gun

Barred from serving on a jury

Ineligible for certain government benefits such as welfare or federally funded housing

Deportation

Being arrested for gang assault in the first degree is serious. If you are convicted many aspects of your life may change forever. You will likely end up in prison away from your loved ones for many years, you will have to pay steep fines, fees and restitution, and you will have a criminal record. However, there may be defenses to a charge of gang assault that only an experienced practitioner will understand. Thus, if you have been arrested for gang assault in the first degree, it is important to immediately contact someone who understands the New York criminal system. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with gang assault as well as other assault crimes, menacing, reckless endangerment, stalking, and rape. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of assault in the following locations:

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